if 'any person or persons shall be injured, by means of any dam
or dams being erected, or the land of any person inundated by
swelling the water by means of any dam or dams, or any mill or
other water-works injured by swelling the water into the tail-
race of any mill or other water- works which may have been
erected in the said river, and if the said Josiah \Yhite, George
F. A. Hauto, and Erskine Hazard, their heirs and assigns,
f*T}~n * cann t a g ree with the owner or owners thereof, on the
-" compensation to be paid for such injury, the same pro-
ceedings shall be had as are provided in the third section of this
act," &c.
The third section enacts, "that the said Josiah White,
George F. A. Hauto, and Erskine Hazard, their heirs arid as-
signs, shall have authority and power, by themselves, or their
superintendents, engineers, artists, and workmen, to enter in
and upon and occupy for the purpose, all laud which shall be
necessary and suitable for erecting a lock, sluice, canal, tow-
path, or other device, doing as little damage as possible, and
there to dig, construct, make, and erect such lock, sluice, canal,
tow-path, or other device, satisfying the owner or owners thereof;
but if the parties cannot agree upon the compensation to be made
to such owner or owners, it shall and may be lawful for the
parties to appoint six suitable and judicious persons, who shall
be under oath or affirmation, and who shall reside within the
144
mil, 1833.] OF PENNSYLVANIA. 131
[Bertsch v. The Lehigh Coal and Navigation Company.]
proper county where the land lies ; or if they cannot agree on
such persons, then either of the parties may apply to the Court
of Common Pleas of the proper county where the land lies, and
the said court shall award a venire, directed to the sheriff, to
summon a jury of disinterested men, in order to ascertain and
report to the court, what damages, if any, have been sustained
by the owner or owners of the ground, by reason of such lock,
canal, sluice, tow-path, or other device passing through his, her,
or their land; which report, being confirmed by the court, judg-
ment shall be entered and execution shall issue, in case of non-
payment, for the sum awarded, with reasonable cost, to be as-
sessed by the court. And it shall be the duty of the jury, or
the six appraisers, as the case may be, in valuing any land, to
take into consideration the advantage derived to the owner or
owners of the premises from the said navigation: Provided,
that either party may appeal to the court, within thirty days
after such report may have been filed in the prothonotary's
office of the proper county, in the same manner as appeals
allowed in other cases," &c.
The fourth section provides, "that the said Josiah White,
George F. A. Hauto, and Erskine Hazard, their heirs and
assigns, by and with their superintendents, engineers, artists,
workmen, and labourers, with their tools, instruments, carts,
wagons, and other carriages, with beasts of draught and burthen,
may enter upon the lands contiguous and near to the said river,
giving notice to the owners or occupiers thereof, and from
thence take and carry away any stone, timber, gravel, sand,
earth, or other material, doing as little damage thereto as possi-
ble, and repairing any breaches they make in the inclosures
thereof, and making amends for any damages that may be done
thereon, and paying for the materials to be taken away, the
amount whereof, if the parties do not agree, shall be assessed
and valued by any three disinterested freeholders residing in
the neighbourhood, under oath or affirmation, to be appointed
by consent of parties, or, if they cannot agree, by any disin-
terested justice of the peace of the *proper county, al- r*ioo-i
lowing an appeal to the Court of Common Pleas, as in L
the third section of this act."
On the 13th of February, 1822, an act of assembly \^as
passed, (Pam. Laws, 21,) to incorporate "The Lehigh Coal and
Navigation Company," the preamble of which recited the act
of the 20th March, 1818, "to improve the navigation of the
river Lehigh," by which certain rights were vested in Messrs.
White, Hauto, and Hazard. It further recited, that they had
conveyed to the Lehigh Navigation Company all the rights
granted to them by that act, reserving certain residuary profits :
VOL. iv. 10 145
132 SUPREME COURT [Philadelphia,
[Bertsch v. The Lehigh Coal and Navigation Company.]
That Messrs. White, Hauto, and Hazard had purchased certain
leasehold and freehold estates in sundry tracts of coal-land, situ-
ate on and near the river Lehigh, which, for the purpose of rais-
ing funds, they had conveyed to trustees, for the use of certain
persons furnishing the funds, and associated under the name of
the "Lehigh Coal Company," reserving certain residuary profits
and exclusive rights in the management of the company : That
these companies had united and amalgamated themselves into
one company, under the name of "The Lehigh Navigation and
Coal Company," confirming to Messrs. White, Hauto, and Hazard
the residuary profits and exclusive rights reserved by them :
That Hauto had agreed to convey all his rights to White and
Hazard, which agreement had been carried into effect, and the
funds of the company being still insufficient for the objects of
the association, it was agreed between the stockholders in the
said company and the said White and Hazard, that the name
of the company should be changed to that of "The Lehigh
Coal and Navigation Company :" That the capital stock should
be increased by the admission of new subscribers, and that, in
consideration thereof, and of certain shares in the stock of the
new company, to be given to them, White and Hazard should
release to the company their reserved rights, and convey to
trustees, for the use of the stockholders in the new company,
all their rights to the water-power, and come in as simple stock-
holders under the new association, &c. The act, therefore, in
the first section incorporated the new company by the name
of "The Lehigh Coal and Navigation Company," with the usual
corporate powers, &c. The second section vested the property
of the former association in the new corporation, and provided
that its contracts should continue in force. The third section
confirmed to the corporation the rights and privileges granted
to Messrs. White, Hauto, and Hazard by the act of 20th March,
1818. The seventh section declares, that in the appraisement
of damages and valuation of materials, provided for by the
second, third, fourth, fifth, or any other section of the above-
mentioned act, if either party shall require it, the referees or
persons composing the jury of valuation, shall not be taken
from within seven miles of the river Lehigh.
The complaint of the plaintiff set forth, that the Lehigh Coal
and Navigation Company, on the 1st October, A. D. 1827, and
at divers other days and times, between that day and the day of
the presentation of the original petition in this case, by their
f*1 W\ su P ermten dents, *engineers, artists, and workmen, by
J virtue of the authority and power given to them by an
act of the general assembly of this commonwealth, passed the
13th of February, 1822, entitled "An act to incorporate the
146
Feb, 11, 1833.] OF PENNSYLVANIA. 133
[Bertsch v. The Lehigh Coal and Navigation Company.]
Lehigh Coal and Navigation Company/' and the several acts
supplementary thereto, did eater upon and occupy the land of
the said Christian Bertsch, being a tract of laud containing one
hundred and sixty acres and one hundred and forty-six perches,
situate in the township of Lehigh, in the county of Northampton,
and did then and there, dig, construct, erect, and make a certain
canal, tow-path, and berm bank on the said land of the said
Christian, extending for a distance of two hundred perches in
length, and occupying thereby a large portion of the said laud,
that is to say, eleven acres and forty-two perches thereof, with-
out making compensation therefor ; and did then and there
throw open the fences of the said Christian on his said land,
and did, for a long space of time, that is to say, during all the
time aforesaid, occupy the meadow and other lands of the said
Christian, in the said township, by their superintendents, &c., by
their carts, &c., passing and repassing the same, thereby tread-
ing down and destroying the grass and herbage there growing,
and destroying the fences and hedges of the said Christian there
standing; that is to say, two hundred perches of said fence,
and did then and there further, by means of certain dams being
erected, inundate the lands of the said Christian situated as
aforesaid, that is to say, five acres of arable land and five acres
of meadow laud, and did greatly injure the distillery of the said
Christian by lessening the business and profits thereof, and did
also greatly injure and lessen the business and profits of the
wool-carding machine of the said Christian, and did also greatly
injure the business and profits of the blacksmith's shop of the
said Christian there, and did, by means of the said canal, berm
bank, and dams, divert and change the course of the streams of
water issuing and running from three certain springs of water
issuing on the land of the said Christian, in the township afore-
said, by which his meadow land and arable laud, viz., ten acres
of meadow land and ten acres of arable land were inundated
with water, and destroyed, and rendered entirely useless to the
said Christian, to wit, at the county aforesaid, and other wrongs
to the said Christian then and there did, for which he has re-
ceived no compensation : By means whereof he, the said Chris-
tian, hath sustained damages to the value of four thousand
dollars.
The defendant pleaded as follows : "And the said the Lehigh
Coal and Navigation Company, by /. M. Porter, their attorney
come and defend the wrong and injury when, &c., and say, that
the said Christian ought not to have instituted this proceeding,
and ought not to have and maintain his action thereof against
them, because they say, that heretofore, to wit, on the 3d August,
1827, the said Christian and the said company entered into an
147
133 SUPKEME COURT [Philadelphia,
[Bei tsch v. The Lehigh Coal and Navigation Company.]
agreement in writing, sealed with the seal of the said Christian
and of Jonathan Fell, President of said company, on behalf of said
l~*1~j.1 company; one part of which said agreement, *sealed
- with the seal of the said Christian, the said company
bring here into court, the date whereof is the day and year
aforesaid, whereby the said Christian agreed to sell, and the said
Jonathan, on behalf of the said company agreed to buy all the lands
belonging to the said Bertsch which might be occupied by the
canal improvements then about to be made by the said company
along the river Lehigh, and likewise all his (the said Christian's)
land, which should be comprised between the said canal and the
river, at the price of twenty-five dollars per acre, the said
Bertsch to make the said company a good and legal title for the
same, free from all incumbrance, and the said company to pay
him at the rate aforesaid, as soon as the quantity of land should
be precisely ascertained, and a sufficient deed made therefor ;
and it was thereby further agreed, that the said Bertsch should
have the right of the river fishery on the premises, and also the
right of using any part of the shore thereby granted, for the
abutments of a bridge to be built over the river Lehigh, and also
the right of continuing the bridge across the canal, provided
the same be so built as not at any time to interfere with the
navigation of the canal. And the said company further in fact
say, that thereupon afterwards, and after the said canal men-
tioned in the said agreement, with its necessary appendages and
appurtenances were completed, to wit, on 2d December, A. D.
1829, at the county aforesaid, the said company caused all the
land belonging to the said Bertsch, so occupied by the said canal
improvements, together with all his lands comprised between
the said canal and the river Lehigh, to be surveyed, and the
quantity thereof to be precisely ascertained, and the quantity
was then and there ascertained to be, and was eleven acres and
forty-two perches of land, of which the said Christian then and
there had notice ; and the said company aver, that they have
performed, done, and kept everything in the said agreement
mentioned on their part and behalf to be done, kept, and per-
formed, and did then and there, to wit, on the same day and
year last aforesaid, at the county aforesaid, offer to pay to the
said Christian the sum of two hundred and eighty-one dollars
fifty-six and one-half cents, the full consideration of said lands,
so as aforesaid occupied and agreed to be conveyed, and did
then and there demand and require of the said Christian to
make to the said company a good and legal title for the same,
free from all incumbrance.
" And the said company further aver, that the said lands in
the petition and plaint of the said Christian mentioned, and
148
l, 1833.] OF PENNSYLVANIA. 134
[Bertsch v. The Lehigh Coal and Navigation Company.]
therein alleged to be occupied and injured by the said canal, and
the said land in the said agreement and in this plea hereinbefore
mentioned, are the same and not divers ; and this, the said com-
pany are ready to verify. Wherefore they pray judgment if
the said Christian ought to have instituted the proceedings, or
ought to have or maintain his aforesaid a'ction thereof against
them, &c."
To this plea the plaintiff replied, " that he did not agree with
the defendants for compensation for the injuries complained of
in the plaint done to the lands and premises therein mentioned,
in manner *and form as the defendants, in their plea r*io~-|
have alleged. And of this he puts himself upon the *
country."
The written agreement referred to in the defendant's plea,
on being oifered in evidence, was objected to by the plaintiff's
counsel, on grounds which it is not now necessary to state. His
Honour permitted the paper to be read in evidence, observing,
at the same time, that its effect might depend on future proof.
Abel A"bbot, a witness produced by the defendants, being
under examination, the plaintiff's counsel put to him the follow-
ing question : " Could the canal have been laid nearer the river
than it is, without altering the level as it stood above and below,
without injuring the company ?" This question was objected to
by the defendant's counsel, but the court permitted it to be an-
swered.
In the course of the trial, the counsel for the plaintiff offered
in writing to prove by John Musselman, the following facts :
1st. "That when the article of agreement given in evidence
by the plaintiff, was signed, the route of the canal through
Christian Bertsch's land was staked off: That it was expressly
agreed between the parties that the canal should be dug on the
ground staked off: That the plaintiff was unwilling to sign the
agreement until it was stipulated that it should be so dug : That
it was further expressly stipulated that there should be two locks
built on the plaintiff's land, which would have been a benefit to
the plaintiff, so as, in a small degree, to compensate him for the
injury f o be done him, and the situation of the locks was pointed
out by Mr. Fell : That Bertsch refused to let the canal be dug
further into the land than where the stakes were placed, and
said he would sign the agreement on those terms : That the
route of the canal was subsequently, and without the assent of
Bertsch changed, and laid more than the width of the canal in
some places further in upon the land of Bertsch, which was his
best land : That the locks have not been built as stipulated for
by Mr. Fell, at the time of signing the agreement, and not one
is on Bertsch's laud : By means of which alterations, much more
149
135 SUPEEME COURT [Philadelphia,
[Bertsch v. The Lehigh Coal and Navigation Company.]
damage has been suffered than would have been suffered had the
Banal been located where it was originally designed; and that
Christian did not then understand, and cannot read English."
The plaintiff then further offered to prove
2d. "That in the construction of the canal, locks, &c., the
defendants occupied a large portion of the farm of the plaintiff,
driving through with their carts, carriages, &c., and their super-
intendents, agents, and workmen working on the same, by which
he was deprived of the use of his- farm for a whole year ; de-
stroyed a large quantity of fence of the plaintiff, on his land ;
flooded the water on his meadow, by the diversion of three
springs mentioned in the declaration, and by increasing*the depth
of the river, by the dam below the land of the plaintiff; wholly
deprived the plaintiff of the profits of his apple-distillery, wool-
carding machine, and smith-shop, which, before that time, did a
PM^fll ^ ar S e business; and took stones from the land of the
-" *plaintiff, for constructing and erecting their slope-wall
and locks, for which no compensation has been made."
The evidence thus offered was objected to by the counsel for
the defendants, and overruled by his Honour, who, in rejecting
it, gave the following
OPINION. If anything is omitted in an agreement by fraud
or mistake, we suffer it to be corrected. This is one thing to
vacate the agreement entirely, is a different matter. To correct
an agreement is one thing, to declare it void is another. This
latter seldom occurs, unless in case of misrepresentation of ma-
terial matters.
The expression that the agreement cannot be partly in writing
and partly by parol, requires much limitation. It is not true as
to errors in reducing it to writing. When it is intended ac-
tually to make a different contract, by introducing stipulations
substantially varying the written agreement, and making it a
different contract, not correcting it by adding omissions, the ex-
pression is true. The written agreement is to pay for land which
should be taken. The parol agreement is to sell a particular
designated place. If this were admitted, the agreement would
go for nothing.
But, in another point of view, after a contract has been car-
ried into effect, and ruin would follow the rescission of it, as in
A contract to pay for flooding land by a mill, and then denying
the contract, and by assize of nuisance, pulling it down, courts
will, unless there has been much fraud, leave it to be compen-
sated in damages.
If there is no agreement you proceed by petition ; if there is
an agreement, you must sue on it, and this court has no juris-
diction, unless in a suit on the agreement. It then becomes a
150
Feb. 11, 1833.] OF PENNSYLVANIA. 136
[Bertsch v. The Leliigh Coal and Navigation Company.]
question, not only as to parol evidence to vary an agreement in
a common suit, but one to set aside a contract and give jurisdic-
tion, and, in this case, as the agreement was made, you must sue
an it, and recover for a violation of it, if you can. Here we:
have no jurisdiction to correct it. We have jurisdiction only
where no agreement has been made.
In Christ v. Diffeubach, 1 Serg. & Rawle, 464, and some
other cases, it would not have been heard that a tenant could t
have been sued as a trespasser, or for use and occupation, and
unlimited damages given. Here, if the plaintiff' has any claim,
it is for a breach of the agreement. By his agreement he had
taken his case out of this law. It is one thing to make the de-
fendants pay for half the breadth of the canal, if that could be
done ; another to set aside the whole contract. Collam v. Hocker,
1 Rawle, 108.
This evidence puts an end to the paper ; renders it useless,
and makes an entirely different contract. As well might it be
proved that a bond was not to be paid. The sale of laud for a
canal seems to preclude all idea of a suit for damages done by
it to the distillery, the mill, and in preventing access to the
river. You admit an agreement, binding if they had lived up
to it. Neither party contemplated choosing arbitrators, an ap-
peal and trial in court for damages done by the canal.
*The plaintiff was nonsuited, and afterwards moved ,-*-. -
to take off the nonsuit :
1st. Because the court erred in permitting the question to be
put to Abel Abbot, which was objected to by the counsel for
the plaintiff as stated above.
2d. Because the court erred in rejecting the evidence pro-
posed to be given by the plaintiff, as contained in his first
written offer.
3d. Because the court erred in rejecting the evidence pro-
posed to be given by the plaintiff, as contained in his second
written offer.
The Circuit Court having refused to take off the nonsuit, the
plaintiff appealed to the court in bank.
On the argument in this court, Brooke, for the appellant,
abandoned the first of the reasons assigned for taking off the
nonsuit.
In reference to the second he observed, that at the time the
plaintiff and the president of the Lehigh Coal and Navigation
Company, Mr. Fell, were negotiating in reference to the land of
the former, he was extremely unwilling to enter into the agree-
ment in question. He was not disposed to take twenty-five dol-
lars an acre, but Mr. Fell, who had been going along the line of
the canal, making agreements with the owners of land, told him
151
137 SUPREME COURT [Philadelphia,
[Bertsch v. The Lehigh Coal and Navigation Company.]
that the line was marked out, and that the company would put
two locks on his laud, which would have been a great advantage
to him, as he contemplated keeping tavern. These representa-
tions and promises were the inducement to execute the agree-
ment, hut the stipulations of the defendants were not complied
with, and consequently the plaintiff was not bound by the agree-
ment. It was an executory contract, depending on certain con-
ditions to be performed, and the parties had a right to alter the
terms of it, or if one party departed from it, that party was
bound to make compensation to the other. After the plaintiff
had executed the agreement on the faith of the assurance of the
president, that the canal would be made as it was then staked
out, the company departed from the contemplated line, and this
the judge who tried the cause would not permit the plaintiff to
prove. The mode of proceeding which he adopted was the only
remedy open to him to obtain compensation for the injuries he
sustained. An action upon the agreement w r ould have afforded
no remedy, for he could recover upon it no more than twenty-
five dollars an acre for the land, w r hich would have been a very
inadequate compensation. Indeed, no action could have been
maintained at all. Hopkins v. Mehaffy, (11 Serg. & Rawle, 126,)
proves that Fell, who was the agent of the company, could not
have been made to respond in damages ; and as no seal was af-
fixed to the instrument^ an action of covenant could not have
been maintained against the company. Nor could the plaintiff
have brought assumpsit, set forth the agreement, and then shown
it had been departed from, for that would have been to make the
agreement a nullity. Where there is fraud, moral or legal ;
where a party has been deceived, misled, or mistaken, and the
I~*1 ^81 con t rac t is ^virtually destroyed, parol evidence is ad-
-I missible to prove such facts. Here the agreement was
rescinded in consequence of not having been complied with by
the defendants, and the proceeding directed by the act of assem-
bly was the only remedy the plaintiff had. The replication was
not in the nature of a plea of non estfactum; it averred that
the plaintiff did not agree in the manner and form alleged by
the defendants, and the object of the evidence was to establish
this averment.
The third reason assigned for taking off the nonsuit was
abandoned.
J. M. Porter, for the appellees. The agreement having been
pleaded, it was incumbent on the defendants to prove its execu-
tion only, and that the canal was constructed according to that
agreement, for the act of 1818 gives no authority to institute
uch a proceeding as this, except where the parties have been
152
Feb. 11, 1833.] OF PENNSYLVANIA. 138
[Bertsch v. The Lehigh Coal and Navigation Company.]
unable to agree. To show that the agreement was different
from that which was executed by the parties, parol evidence
was clearly inadmissible. It was not contended that there was